When is an ambulance a non-emergency ride?
Apparently, the government has already started enforcement of the No Surprises Act (NSA.) One of my clients was contacted a couple of weeks ago, accused of failing to give a good faith estimate (GFE). There are several things worth discussing.
First, the patient in question called on a Friday to schedule an appointment for the following Wednesday. A GFE is required when the patient schedules a visit at least three business days before the date the item is to be furnished. Counting days is often a challenge. Do you count the day on which the visit was scheduled? Do you count the day the patient calls? The regulation says that the GFE is needed when the appointment is scheduled at least three business days before the date the event is scheduled.
Now, the way I would count, you need three full business days. That would mean Monday, Tuesday and Wednesday, so no GFE was required. The government disagrees. They would count the Friday, Monday and Tuesday. The government’s position is that if a visit scheduled at 4:59 pm (or 11:59 pm) on a day, that still counts as a full business day during which the entity could have been preparing the estimate. It’s an interesting question as to whether they’re correct. I guess we will find out.
The government, which is using contractors from the consulting company KPMG to conduct this investigation, seems to be threatening to impose penalties. This is another interesting question. The No Surprises Act Statute includes potential penalties of up to $10,000 per violation. However, the government has not yet issued any regulations about how to implement the penalty provision. Moreover, the statute indicates that the federal government is supposed to impose penalties only after making a finding that the state has failed to enforce the provisions. So, does the federal government currently have the authority to fine my client? Once again, I guess we will see.
My firm, Fredrikson and Byron, does free monthly webinars, and the April webinar addresses common question under the No Surprises Act. You can see it here. Among the topics covered is the fact that the drafters failed to understand the difference between the conjunctions “and” and “or.” In third grade, most of us learned that “and” pairs things, while “or” offers alternatives. In the immortal words of Schoolhouse Rock, “because ‘and’ that’s an additive like ‘this and that’, then there’s ‘or’ when you have a choice like ‘this or that.’” Apparently, the individuals who wrote the rules didn’t watch their morning cartoons (or pay careful attention in English class!)
For example, the government asserts that if a patient uses an ambulance to transfer from one hospital to another, it’s impossible to ask the patient to consent to be balance billed. But the regulation permits balance billing if the physician treating the patient feels that the enrollee can travel using non-medical transportation or non-emergency medical transportation.
An ambulance is only emergency medical transportation when it has its lights and siren on. When it drives normally it is non-emergency medical transportation. If the authors of the regulation wanted to restrict transfers to patients who could go via car, they should have stopped after the phrase “non-medical transportation.” Adding the “or non-emergency medical transportation” means it’s entirely possible to use an ambulance for the transfer. In fact, as soon as the sentence includes an “or” it can be labelled as poorly drafted because if the patient meets the lower of the two tests, the regulation is satisfied. You will never see a sign that says “you can only ride if you are at least 5 or 6 feet tall” because the reference to six feet is extraneous.
Unfortunately, this is only one of the illustrations of the drafting errors in the regulations. Hopefully as the government begins enforcement, it will avoid inquiry in areas where its regulations are poorly crafted.
Programming Note: Listen to healthcare attorney David Glaser and his “Risky Business” segment every Monday on Monitor Mondays at 10 Eastern.